 PROJECT:- INHERENT POWER OF

CIVIL COURTS
 NAME:-NEERAJ KIUMAR RAY.
 SEMESTER:- 10(X)
 ROLL NUMBER:- 53
 SECTION:- A
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 TABLE OF CONTENTS

 Acknowledgement…………………………………...……………….….3

 Introduction…………………………………………………..……………4
 Reason and Purpose behind the Inherent power of the court……….4

 Section Regarding to Inherent power of the court…………………….5

 Enlargement of the time of Section 148…………………………….5
 Payment of court fees Section 149………………………………….7
 The reason for saving the Inherent powers ………………………..8
 Section 152 and 153………………………………………………….9
 Limitation to the exercise of inherent powers…………………………10
 Conclusion………………………………………………………………..11

 Bibliography……………………………………………………...............12
 Table Of Cases……………………………………………………………12

Acknowledgement
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I would like to express my special thanks of
gratitude to my Prof. A.K.Mehrotra sir who
gave me the golden opportunity to do this
project on the topic INHERENT POWER OF
CIVIL COURTS . It helped me in doing a lot
of Research and I came to know about a lot
of things related to this topic.

 INTRODUCTION
According to Black’s law dictionary Inherent power means “a power

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 which necessarily derives from an office, position or status.” As in this
definition of inherent power said that it is necessarily derives from office
means it can’t be separate from the office. So it is an essential element,
something intrinsic, or essential, vested in or attached to a person or office
as a right of privilege1 because it is necessary to running the office or for a
person to fulfil his responsibility. It is also a concept of the management
that a you should give some free scope to your employee that he can deal
in better way with the problems according to circumstances. Same is
applying in regarding the judiciary here legislator draft the rules but they
also leave the scope for the courts in form of inherent power.

Reason and Purpose behind the Inherent power of the

Court:
The fundamental purpose of the courts is the meet to end of justice in a
friendly manner and for this CPC was enacted that justice can be delivered
in the smooth way. But it is also should be keep in the mind that no
legislator can not presume all the situation or problems which will be arise
in regard of particular matter. So meet to above mentioned purpose it is
necessary to provide such inherent power to the court. In Indian legal
system this inherent power of the civil courts is preserved in the Section
151 of Civil Procedure Code,1908. The purpose is also described in the
case of Mahendra Manilal v. Sushlila Mahendra2. It was said in this case
that in unforeseen circumstance and in ex debito justitiae in absence of
express provision in this code. This concept of inherent power of the court
is introduced in the interest of justice and effective judicial administration.
As it was beautifully described by the Supreme Court in the case of
Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal 3 it was
said by Justice Raghuveer Dayal every court is made for providing the
justice according to law and for that it is necessary that they possess all
such power so they can do right and undo the wrong. Under following it is
described in the language of the judgment given by justice Dayal.
“The inherent powers of the Court are in addition to the powers
specifically conferred on the Court by the Code.They are complementary to
those powers and therefore it must be held that the Court is free to
exercise them for the purposes mentioned in section 151 of the Code
when the exercise of those powers is not in any way in conflict with what
1
. Concise oxford English dictionary(2002)
2
AIR 1965 SC 364 at p. 399
3
1962 AIR 527, 1962 SCR Supl. (1) 450

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 has been expressly provided in the Code or against the intentions of the
Legislature. It is also well recognized that the inherent power is not to be
exercised in a manner which will be contrary or different from the
procedure expressly provided in the Code."

 Section Relating to Inherent power of the court:

Five section of the Code of Civil Procedure are most related to this concept
of the Inherent power of the court. Out of five sections,section 151
preserve the inherent power of the courts.
Section 151 gives the wide scope to court to use this inherent power of
the court. Another sections are just focusing on the same points like
Section 148 focuses upon enlargement of the time,
Section 149 focus upon matter related to the payment of the court
fees and
Section 152 & 153 deal with amendments in judgments, decree orders
and in other proceeding.
Section 153-b declares a place of trial to be open court.

Here these sections are mentioned with the more details.

1.Enlargement of the time of Section 148:

This section is indicate the one scope where court may use its‟ inherent
power”. In general this section provides power to court for enlarging the time
for any act which given by the court to anyone.
This section is read as in the Civil Procedure Code, 1908 “Where any
period is fixed or granted by the Court for the doing of any act
prescribed or allowed by this Code, the Court may, in its discretion,
from time to time, enlarge such period 1[not exceeding thirty days in
total], even though the period originally fixed or granted may have
expired.”

In this section the word used is „May‟ which show the intention of the
legislator that they are not compelling to do so they are just leaving on the
judiciary so that they can use it according to circumstances or facts of the
case. In general one rule can‟t be applied in every situation so there
should be some flexibility as by Justice Hidayatullah “conditional orders are
not like the law of Medes and the Persians.” This section just gives the
basic rule many practical problem arise regarding to this rule in many

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 cases so for full understanding this we can refer some cases.

In another case Chinnamarkathian v. Ayyavoo4 it was held that a court in

the exercise of its‟ jurisdiction can grant time to do a thing , in the absence
of a specific provision to the contrary curtailing, denying or withstanding
such jurisdiction , the jurisdiction to grant time would include in its ambit the
jurisdiction to extend time initially fixed by it.8 It was also said in this case
that this section provide the discretionary power to the court for specific
purpose as above discussed so it cannot be claimed by the parties as of
right .
After referred many cases regarding to this section we also found some
condition that court have to fulfil otherwise this section will not possess any
application. First is that a period must have been fixed or granted by the
court and such period must be for doing an act prescribed or allowed by
the code.

2.Payment of court fees Section 149:

Section 149 of the civil procedure code is an enabling provision and its
effect to confer a retroactive validation on a document which is not duly
stamped within the meaning of section 4 of the court fees act..Generally
this section is not used by the parties as a right it is allowed by the court
after Perusal of the facts and circumstance but there is dispute among the
courts that it should be on court discretion or it should be use by the
parties as a right. In the case of Priya Nath v. Mianjan5,it was held by the
Calcutta high court that it should be based on the discretion of the court
that whether a person is to be allowed to make good deficient court fees
and it is only such payment is allowed, that validation clause will apply
.Same decision was held by the Madras court in the case of Narayana v.
Veenakataskrishana6 and by the Patna High court in the case of Gaya
loan office v. Awadhh Behari7. But on this descending opinion is given by
the Bombay High court in the case of Achtt v. Nagappa8 and Punjab chief
court in the case of Jiwan Das v. Khusabi Ram9 that any party can claim
for allowed time to pay up the deficient fee of the court.
There is no such fixes rule for the applicability for this section but it was
discussed in many cases after all cases above mentioned it was settled by
4
(1982)1 SCC 159 at p.168
5
29 I.C. 571
6
27 I.C. M.L.J. 677 at p.678
7
pat.L.J. 420 at pp. 423
8
I.L.R. 38 Bom. 41
9
27 P.L.R. 1917 et seq

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 the supreme court in recent decision in the leading case of K.C. Skaria vs
The Govt. Of State Of Kerala & Anr10 .In this case it was held by two
judge bench that it will be applicable where if the court fee has due on the
time of instituting the plaint if that time court fee is not paid wholly or partly
by the person instituting the suit. Section 149 has no application where the
court fee due on the plaint as per the valuation of the plaint as per the
valuation of the suit.

In this regard some guidelines is also laid down in the book commentary
on the Civil procedure Code by sir John Woodrofee & Ameer Ali that
describe that in which manner courts should be use this discretionary
power of the court:-

1-Court while exercising the discretionary power of the court has to bear in
mind that the power conferred is meant to be exercised in the exceptional
case.
2-it should be exercised on being satisfied that non-payment of court fee in
time is for reason beyond the control the appellant
3-Delay in the payment of court fee should not due to negligence of the
appellant.
4-The ground shown has, therefore, to be adequate, cogent and strong,
because, otherwise the exception would take from of rule which would
militate against the legislative intention.

It was discussed in the case of Buta singh v. Union of India11 that the aid
of section 149, could be taken only when the party was not able to pay
court fee in circumstance beyond his control or under unavoidable
circumstance and the court would be justify in an appropriate case to
exercise the discretionary power of the court under section 149 after giving
due notice to the affected party. So after referred all above mentioned
cases it can be concluded that the court may allow a party to pay court fee
at any stage of the case and after the payment it will considered as it has
been paid at the time when plain was instituted.

3.The reason for saving the Inherent powers under section

151 of the CPC:
This section preserves the inherent power of the courts. This section read
10
A.I.R. 2006 S.C. 811 at p. 817
11
A.I.R. 1995 S.C. 1945 at p. 1947

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as “Nothing in this Code shall be deemed to limit or otherwise affect
the inherent power of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of
the Court.”
This section was inserted first in the code of 1908, but it is merely a
legislative reorganization of the power which has existed since the creation
of the court, viz, that every court has inherent power to act ex debito
justitiae and to do that real and substantial justice for which alone it exists.
So we can say that this inherent power of the court is not conferred on the
court but it is power inherent in the court by virtue of its duty to do justice
between the parties it. This section is just indicate that The inherent
powers are to be exercised by the court in every exceptional
circumstances for which the court lays no procedure whenever any
situation arises either in a suit or in any other proceeding which is
productive of considerable hardship or injustice unless it is remedied, but
there is no provision in the code to fall back upon, the practitioner should
turn to section 151 and weigh carefully whether it can be invoked.
In many cases the purpose of this section discussed so it can be apply
for serve its purpose for which it enacted that is “end of justice‟ and
“prevent abuse of the process of the court‟.
Here we will discuss some case where the purpose of this section was
discussed.
The purpose of this section also discussed in the case of Zandu
Pharmaceutical works Ltd. V. Mohd. Sharaful Haque 12. In this case it
was said that all courts whether civil or criminal possess in the absence of
any express provision as inherent in their constitution, all such powers as
are necessary to do the right and to undo a wrong in course of
administration of justice on the principal “quando lex aliquid alicui concedit,
concedere videture et id sine quo res ipsae esse non potest” meaning by
when the law gives a person anything, it gives him that without which it
cannot exist.

In another case Mohammad salim v. smt. Shahin sah13 it was said The
section merely furnished legislative recognised of an age-old and well
established principal that every court has inherent power to act ex debito
justitae to do the real and substantial justice for the administration of which
alone it exist or to prevent abuse of process of the court.

12
(2005) 1 S.C.C. 122at p.127
13
A.I.R. 2006 Raj. At p. 204

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 As it is mentioned above that the provisions of the code is not exhaustive
and the simple reason of it is that it is not possible for legislate all the
problems which will arise in future. As we can interpret from the language
of the section that this section mainly serve two purpose first is the “end of
the justice” and other one is the “prevent abuse of the process of the
court‟.

 Section 152 and 153:

Both sections is similar in the nature and also based on the same
principal is that an act of the court shall not prejudice to the parties and
other that the courts have a duty to see that their records are true and that
they represent the correct state of the affairs.The difference between both
the section is that through section 152 court can correct the clerical or
arithmetical mistake in the judgment, decree or in a order whereas section
153 have the wide scope and through this section court can correct the any
defect or error in any proceeding.

 Limitation to the exercise of inherent powers:

The court has the great power under these sections of inherent powers of
the jurisdiction mainly in the section 151. But this power should be used for
the objective for which it has been vested with the courts that are end of
justice or prevent to abuse the process of the court. In the leading case of
Nawabgani Sugar Mills co.Ltd. v. Union of India14, In the judgment of
this case Justice Krishna Iyer approved a passage of from Benjamin
cardozo‟s the judicial process which is under:
“The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principal. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinate
to the primordial necessity of order in social life. Wide enough in all
conscience is the field of the discretion that remains.”

The question on the applicability of this inherent power of the court Is

discussed in the many cases so it will be difficult to summed all the
condition but some important limitation are is described under:
14
A.I.R. 1976 SC 1152

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 1:-It should not be used where the Code of Civil Procedure deals expressly
with a particular matter15.
2:-It should not be used when prohibited or excluded by the code or other
statutes.16
3:-It can‟t be used to reopen the settled matter.17
4:-It should be used only for the end of the justice and prevent the abuse of
process of the court.18
5:-Inherent jurisdiction should not be guilty of laches and has to be
diligent.19
6:-If the discretion is exercised by suppression or concealment, the same
must be withdrawn and the benefit recalled20
7:-It should not affect the substantive rights of the parties.

 CONCLUSION:-
Section 151 of Code of Civil Procedure which gives legislative recognition to
inherent powers is restricted by certain construction where the court cannot
exercise its powers when provision for any action or matter is explicitly
prohibited by the Code or any other statute; or where there exists a
15
Manoharlal Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527
16
Daromodaran Pillai v. South Indian bank ltd. AIR 2005 SC 3460
17
State of Wb v. Karan Singh Binayak AIR 2002 SC 1543
18
Ganesh v. Purushottam (1910) 34 Bom 135
19
Somar Bhuiya v. Kapil Kumar AIR 1974 Pat 289
20
Hindustan Thermo prints ltd. V. DRG (UK Ltd) AIR 1999 Del.202

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provision of the Code applicable to the matter at hand. Through an analysis
of the various case laws it has been established that inherent powers must
be exercised only for the ends of justice or to prevent abuse of the process
of court as long as it is not in contravention of any other existing law or
provision.
Under the Indian judiciary, a codified statute such as the Code of Civil
Procedure aims at making the judicial process uniform and unbiased.
Working in this view the legislative process takes due cognizance of the fact
that not all situations can be pre-empted and it holds good for even for their
procedures to be followed.
After looking into the many cases and in the commentaries which is given
by authorities it can be said that the Inherent power is the not absolute and
it is discretionary in the nature but discretion should not be used in the
arbitrary manner. According to Justice SubbaRao the inherent power of the
court is in addition to and complimentary to the powers expressly conferred
under the code. But the power will not be if it‟s inconsistent with , or comes
into conflict with, any of the power expressly or by necessarily implication
that no power shall be exercised in provision. Whatever limitation are
imposed by construction on the provision of section 151 of the code, they do
not control the undoubted power of the court conferred under section 151 of
the code to make a suitable order to prevent the abuse of the process of the
court.21
The two points is very important in the regard of the nature of these
inherent powers

1. These powers cannot override the general principal of the law

2. These powers cannot override the express provision of law.

These powers should be exercised by only in the rare and rarest cases
and court cannot give itself the jurisdiction which is not vested in it.
Bibliography
 Books

1:-Mulla the Code of Civil Procedure 17th Edition 2007

2:-Inherent power of the courts by Anil Sachdeva 2008 edition
3:-Sarkar‟s civil court practice & procedure manual 11th edition 2011
21
Ram Chand v. Kanhayalal AIR 1966 SC 1899

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4:-Commentary on Civil Procedure Code, 1908 5th edition, Delhi Law
5:-Civil Procedure Code, C.K. Takwani sixth addition
6:-Benjamin Cardozo‟s the Nature of the judicial process, Yale University
Press, 1921
7:-Concise oxford English dictionary (2002)

 Table of Cases
1. Kedar Nath Bajoria And Anr. vs The State Of West Bengal
2. Mahendra Manilal v. Sushlila Mahendra
3. Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal
4. Johri Singh v. Sukh Pal Singh
5. Mahanth Ram Das v. Ganga Das
6. Chinnamarkathian v. Ayyavoo
7. Priya Nath v. Mianjan
8. Narayana v. Veenakataskrishana
9. Gaya loan office v. Awadhh Behari
10. Achtt v. Nagappa
11. Jiwan Das v. Khusabi Ram
12. K.C. Skaria vs The Govt. Of State Of Kerala & Anr
13. Jagat Ram v. Misar Kharaiti Ram
14. Gulam Abbas v. Shri Kalayan Finance co
15. Buta singh v. unoion of India
16. Zandu Pharmaceutical works Ltd. V. Mohd. Sharaful Haque
17. Mohammad salim v. smt. Shahin sah
18. Kanai Law Shaw v. Bhathu Shaw
19. Thathu Naick v. Kondu Reddi
20. Hindustan Thermo prints ltd. V. DRG
21. Daromodaran Pillai v. South Indian bank ltd
22. State of Wb v. Karan Singh Binayak
23. Ganesh v. Purushottam Somar Bhuiya v. Kapil Kumar
24. Nawabgani Sugar Mills co.Ltd. v. Union of India
25. Ram Chand v. Kanhayalal

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